Old Economy, Old Rules: Bronner Doctrine Survives Lukoil Test

The strict criteria laid down in the EU Court of Justice's (CJEU) landmark Bronner judgment have often been deployed by dominant firms as a "shield" when facing accusations of acting abusively by blocking competitors from using or accessing their assets. Whilst the range of scenarios in which that shield can apply has narrowed in recent years, the CJEU's judgment in Lukoil I confirms that Bronnercontinues to be relevant in cases involving requests for access to traditional, physical infrastructure.

In particular, even where a dominant firm's infrastructure was first established using public funds, provided that infrastructure was later acquired under genuinely competitive conditions and the firm retains full autonomy over access to it, the Bronner test must be met for a refusal to provide access to constitute an abuse of a dominant position.